The Paradox of Performative Immediacy: Law,Music,Improvisation

I. Improvisation as Performative Immediacy

At first glance, the concept of improvisation may appear to offer very little in terms of complicating notions of performance in law. Improvisation is supposed to be immediate. As Landgraf notes: ‘‘In its ad hoc delivery, improvisation highlights the uniqueness of the ‘event’ that is its performance.’’ ⁸ Even critical improvisational scholars hold tight to the real-time-ness ⁹ of improvisation, all the while acknowledging that ‘‘there is far more to improvisation than meets the ear.’’ ¹⁰ And yet the perception of improvisation as singular and immediate – jazz musicians simply make it up as they go along ¹¹ – is not only incorrect, it has ‘‘racist’’ ¹² undertones, as Derrida notes in ‘‘Play – The First Name: 1 July 1997,’’ the text he performed onstage with Coleman in Paris – for improvisation, in accordance with this conceptualization, is seen to be ‘‘ultraprimitive,’’ ¹³ ‘‘instinctive,’’ ¹⁴ and ‘‘unconscious,’’ ¹⁵ requiring little skill or discipline.

Much has been written in recent years regarding the ‘‘jazz form,’’ or the notion that improvisation is not ‘‘structure-less or chaotic,’’ ¹⁶ but instead requires some sort of framework or pre-determined form or structure. ¹⁷ And this commentary has nothing to add in this regard. As Coleman tells Derrida in an interview preceding their jazz-text collaboration:

… when I was doing free jazz, most people thought that I just picked up my saxophone and played whatever was going through my head, without following any rule, but that wasn’t true. ¹⁸

And later in the interview:

What’s really shocking in improvised music is that despite its name, most musicians use a ‘‘framework’’ as a basis for improvising. I’ve just recorded a CD with a European musician, Joachim Kühn, and the music I wrote to play with him, and that we recorded in August 1996, has two characteristics: it’s totally improvised, but at the same time it follows the laws and rules of European structure. And yet, when you hear it, it has a completely improvised feel. ¹⁹

Improvisation is not, in other words, ‘‘unfettered freedom,’’ ²⁰ but is instead ‘‘made up of several elements,’’ ²¹ many of which are found in composed pieces of music, such as harmony and melody, rhythm and time. ²² One needs a superior grasp of these elements to improvise well and this requires enormous hard work and discipline. ²³ All these components taken together are essential to the ‘‘jazz form’’ and improvisation could not exist without such.

II. Ornette’s Music Lesson

While the above complicates the everyday conceptualization of improvisation as devoid of structure and law, it does not take us very far in understanding the aporetic nature of performative immediacy. For that, we join Derrida and Coleman in Paris for Ornette’s music lesson. ²⁴ It was the summer of 1997 and Ornette Coleman had invited Jacques Derrida to perform with him at the Jazz à la Villette festival in Paris. The performance by Derrida took the audience completely by surprise as his participation was not listed in the programme and Ornette did nothing to signal his arrival but turn to the wings after the end of one song. ²⁵ Derrida stepped onto the stage where he was met by a microphone and a music stand. ²⁶ He begins to recite a pre-composed text, interlaced with some playing by Coleman. ²⁷ Derrida’s performance ends prematurely, ²⁸ after only fifteen minutes, ²⁹ when the audience, intolerant of this ‘‘unaccustomed form,’’ ³⁰ boo him off the stage. ³¹ Derrida is left shaken by the ‘‘painful experience.’’ ³²

This jazz concert, and the preceding interview between Coleman and Derrida, which led to the event, has much to teach us about performance and thus law as performance. Firstly, in the interview, Derrida translated Ornette’s music lesson into a domain with which he is more familiar, ‘‘that of written language’’ ³³ and enquired of Coleman:

Perhaps you will agree with me on the fact that the very concept of improvisation verges upon reading, since what we often understand by improvisation is the creation of something new, yet something which doesn’t exclude the pre-written framework that makes it possible. ³⁴

Coleman agreed. ³⁵ Derrida continued:

… the unique event that is produced only one time is nevertheless repeated in its very structure. Thus there is a repetition, in the work, that is intrinsic to the initial creation – that which compromises or complicates the concept of improvisation. Repetition is already in improvisation: thus when people want to trap you between improvisation and the pre-written, they are wrong. ³⁶

To which Coleman replied: ‘‘Repetition is as natural as the fact that the earth rotates.’’ ³⁷

The performance of improvisation is thus not one of pure immediacy, but retrospectively develops and builds on its own history: ³⁸ ‘‘… in jazz,’’ explained Coleman, ‘‘you can take a very old piece and do another version of it. What’s exciting is the memory that you can bring to the present.’’ ³⁹ Similarly, for Derrida, the distinction between a planned or prescribed act and improvisation is always already unsettled. ⁴⁰ The uniqueness of the event, in other words, is only made possible through its engagement with certain constraints, be them ‘‘temporal, material, technical, genre-specific, linguistic, cultural, or societal,’’ ⁴¹ which we can broadly term here ‘‘laws.’’

In Of Hospitality, Derrida presents ‘‘The law’’ ⁴² as absolute, unlimited hospitality to the unpredictable other, as that which requires unconditional welcome and open doors/borders to all visitors. This absolute hospitality is contradicted, though, by the conditional ‘‘laws (in the plural)’’ ⁴³ that come with sovereignty (over one’s home or land) and the need for self-protection against a guest who desires to steal from or kill the all-welcoming host. Absolute hospitality (or what Derrida terms elsewhere, justice ⁴⁴ ) is accordingly impossible, but it is this very impossibility which makes conditional hospitality (‘‘the laws’’) possible. Law must thus be understood in a ‘‘double sense,’’ ⁴⁵ as an openness to the unexpected (‘‘The law’’), but also as a constraint on this unpredictability (‘‘laws,’’ the legal system). ⁴⁶

Derrida’s La Villette text at once announces and invokes an openness to (and fear of) unpredictability (and the ‘‘unpredictability of the future’’ ⁴⁷ ):

Qu’est-ce qui arrive? What’s happening? What’s going to happen, Ornette, now, right now?

What’s happening to me, here, now, with Ornette Coleman? With you? Who?

… I knew that Ornette was going to call on me to join him tonight, he told me so when we met to talk one afternoon last week. This chance frightens me, I have no idea what’s going to happen. ⁴⁸

Playing with its own fallibility, Derrida’s performance (and text) displays an openness or hospitality ‘‘toward the advent of something unexpected, unplanned, unforeseen.’’ ⁴⁹ And yet, the angry and unwelcoming reception of an unannounced spoken word performance during Coleman’s jazz concert simply confirms the impossibility of an unconditional hospitality to the unexpected.

Improvisation shares with law an impossible openness to the unpredictable and uncertain other. However, to be recognised as improvisation, it must obey certain pre-existent structures or ‘‘laws.’’ ‘‘You gotta improvise on somethin’,’’ says Charles Mingus. ⁵⁰ On the other hand, as Derrida’s performance on stage with Ornette Coleman evidences, even the reading of a pre-composed written text is, in a strict sense, an ‘‘improvisational exercise’’: ⁵¹

As all of you see, I have here a sort of written score, you think I am not improvising, well, you are wrong. I am pretending not to improvise, I just pretend, I play at reading, but by improvising. ⁵²

Derrida’s performance makes evident that he, as reader, cannot fully control what is happening or what will happen during the reading. His text blurs the line between composition and performance by making obvious its ‘‘own process of composition’’ and mischievously, playfully, questioning its ‘‘pragmatic status.’’ ⁵³ ‘‘Play – The First Name: 1 July 1997’’ is read, performed as a ‘‘written score,’’ but is also authorized to be published. It is as if, Landgraf provocatively adds, Derrida ‘‘wants to be caught in a lie.’’ ⁵⁴

The admissions of the text completely contradict what is most apparent to the audience or reader ⁵⁵ and paradox ensues: ‘‘If he is lying, he is saying the truth (he is indeed reading); if, however, he is saying the truth, then what we perceive, namely Derrida reading a text, would indeed be a lie.’’ ⁵⁶ Landgraf explicates:

The point of staging/stating such a paradox is … to demonstrate how it is the reception of the performance that determines its meaning, a meaning, however, that cannot find certainty by referencing the intentions of the speaker. For the speaker himself cannot know how his performance will be perceived or how the created impasse will be decided by the audience or reader. Derrida thus creates a performance/text whose meaning is unpredictable. For Derrida, the ‘‘fallibility’’ of a reading is, of course, not accidental, but rather is a structural mark of communication, a precondition for the possibility of communication in the first place. Communication works because the meaning of signs, words, text, and language can never be fully controlled or anticipated. ⁵⁷

Derrida’s performance highlights the impossibility of a purely improvised (or unimprovised) event. There are always traces of text in performance, composition in improvisation, and speech in music. As David Wills remarks, ‘‘Derrida is inviting Coleman to pretend to speak just as Derrida has been pretending to improvise between language and music, to create a new language or a new music or both.’’ ⁵⁸ The fact that much of Derrida’s text was not actually performed on stage at Parc de la Villette, as he was compelled to leave before he could finish, confirms that ‘‘[p]erformance alone does not constitute an event’’: ⁵⁹

Yet as we read what we didn’t hear, and as we read it beyond the jeers and insults, something remains of Derrida’s ‘‘performance.’’ That something is this: the Derrida who would not permit himself to write on jazz – ‘‘I enjoy listening to jazz a lot, I would have never agreed to this if I didn’t like jazz, but it is a foreign world to me, I would never permit myself to write on jazz’’ … – nevertheless raises a set of profound questions that go to the heart of the project of jazz … ⁶⁰

III. The Proper Name of Law

… who signs, and with what so-called proper name, the declarative act that founds an institution? ⁶¹

As the title of the written text he performed at Parc de la Villette – ‘‘Play – The First Name: 1 July 1997’’ – reveals, Derrida is furthermore playing with the ‘‘tension between repetition and alteration’’ ⁶² through the concept of the proper (first) name, a name that must be performed ‘‘as a signatory repetition’’ ⁶³ in order to be understood properly. The paradox of the proper name is that it ‘‘ought to indicate a concrete individual, without ambiguity’’; ⁶⁴ it ‘‘ought to be the very prototype of language.’’ ⁶⁵ However, as Bennington notes, ‘‘[f]or there to be a truly proper name, there would have to be only one proper name, which would not even be a name, but pure appellation of the pure other.’’ ⁶⁶ Thus, the ‘‘proper name’’ is ‘‘always already improper,’’ ⁶⁷ that is, in its designation as that which it is not (other proper names), it is ‘‘marked by the trace of these others.’’ ⁶⁸

The proper name of law is the originary act that brings the law (in the double sense detailed above) into existence and maintains within itself the signature. ⁶⁹ As that which creates the entirely new, the originary act (the proper name) is, by definition, an improvised event. While he makes no mention of ‘‘improvisation’’ in his short text, ‘‘Declarations of Independence,’’ ⁷⁰ in exposing the deficiencies of a designation of performance that focuses solely on performative immediacy, Derrida has much to say about both improvisation and law.

Focusing specifically on the signing of the 1776 American Declaration of Independence, by which the English legal system was formally renounced and a new nation – the United States of America – created, ⁷¹ Derrida interrogates the originary paradox that lies at the heart of law in which the ‘‘founding act of the law’’ – ‘‘necessarily alegal in itself’’ – only becomes legal ‘‘after the fact.’’ ⁷² To explain, the inauguration of any fundamental law, such as a first constitution, ‘‘cannot, either in law or in fact, simply precede that which at once initiates it and nevertheless supposes it: projecting and reflecting it.’’ ⁷³ The law, in other words, which is signed into existence by the signature attached to the constitutional document, must retrospectively authorize the original signature or the originary act of signing: ‘‘a signature authorizes itself to sign, in a word, legalizes itself on its own without the guarantee of a pre-existing law.’’ ⁷⁴

Derrida asks: was America’s independence stated or produced by the declarative act of freedom from British rule? Were the ‘‘good people,’’ in other words, already free and simply stating the fact of this freedom in the Declaration? Or was the signing of the Declaration the act that produced their liberty? Derrida elaborates:

It is not a question here of an obscurity or of a difficulty of interpretation, of a problematic on the way to its (re)solution. It is not a question of a difficult analysis which would fail in the face of the structure of the acts involved or the overdetermined temporality of the events. This obscurity, this undecidability between, let’s say, a performative structure and a constative structure, is required in order to produce the sought-after effect. It is essential to the very positing or position of a right as such, whether one is speaking here of hypocrisy, of equivocation, of undecidability, or of fiction. I would even go so far as to say that every signature finds itself thus affected. ⁷⁵

The signature is necessarily related to the proper name. ⁷⁶ The ‘‘good people’’ of the United States of America do not exist prior to the signing of the Declaration, at least not ‘‘as such.’’ ⁷⁷ Instead, they are born in the act of signature. ‘‘The signature invents the signer.’’ ⁷⁸ But, at the same time, signature is not possible without the one who signs. This is the paradox of signature: ‘‘There was no signer, by right, before the text of the Declaration which itself remains the producer and guarantor of its own signature.’’ ⁷⁹ The State then founds itself by giving itself the authority to sign after the act of signature, what Derrida calls ‘‘a sort of fabulous retroactivity.’’ ⁸⁰

The ‘‘absolute singularity of the event of the signature’’ ⁸¹ must be able to ‘‘detach itself from the present’’ ⁸² and ‘‘have a repeatable, iterable, imitable form.’’ ⁸³ The signature exists as signature only on the condition that it is ‘‘repeatable as the same signature, in several copies.’’ ⁸⁴ It is governed by ‘‘iterability’’ (iter comes from itera, other in Sanskrit), ⁸⁵ which ‘‘links repetition to alterity’’ ⁸⁶ and ensures structural legibility ‘‘beyond the death of the addressee.’’ ⁸⁷ Accordingly, the signature, and the proper name it designates, is always ‘‘already contaminated’’ ⁸⁸ with all those proper names that it is not and any attempt to ‘‘make one’s text absolutely proper to oneself,’’ ⁸⁹ risks erasure for ‘‘the totally signed text, proper to its signatory, appropriated by him, would no longer be a text.’’ ⁹⁰

Derrida’s discussion of the US Declaration of Independence allows for some performativity in law. In this text, among others, ⁹¹ Derrida interrogates the undecidability between the constative and the performative, between a speech act that typically describes what exists and one that actually performs an action. ⁹² Writes Derrida:

… there’s an utterance that is called constative, a theoretical speech that consists in saying what it is, describing or noting what is, and there’s an utterance that is called performative and that does in speaking. For instance, when I make a promise, I’m not saying an event; I’m pronouncing it by my commitment. ⁹³

Although, typically, the Declaration of Independence is seen to be a constative speech act, one that simply describes what is; in fact, this legal document actually performs or ‘‘does what it says it does’’: ⁹⁴ ‘‘it is not the people who create the Declaration, but the Declaration that creates the people.’’ ⁹⁵ However, Derrida goes further to reveal that an event of pure performance or performativity is actually impossible. Explains de Ville: ‘‘a performative speech act can never be a pure event, in other words absolutely singular, a present and singular intervention, or ‘something’ that happens for the first and last time – it is always split, dissociated from itself.’’ ⁹⁶

IV. Law as Improvisation

As early as 1991, Balkin and Levinson had acknowledged the relation between music and law as a ‘‘performative art’’ and called for further engagement in law with ‘‘performance practices (and theory) in other arts.’’ ⁹⁷ Since that time, though, very little seems to have been written in law and music studies on the paradox of performative immediacy, or the impossibility of performance as such and what this means for law. What this commentary struggled to communicate is that law is not performed per se, but is instead improvised. Both law and improvisation share the same ‘‘structural tension’’ ⁹⁸ in that their meaning rests on the aporetic relation between singularity and generality, repetition and alteration: ‘‘singularity, originality, or immediacy are already tied to repetition,’’ ⁹⁹ just as generality, stability, and predictability involve constant alteration. Outside this relation, ‘‘these notions cannot be communicated, understood, or even recognized.’’ ¹⁰⁰

Uniting Derrida’s Jazz à la Villette performance with his writings on performativity in law, I aimed to demonstrate here that while engagement with performance practices in the arts, such as music, is of the utmost value to law and legal theory, we must not take for granted what it means to ‘‘perform’’ or the paradoxical relationship that exists as between text and performance, composition and improvisation. As Derrida says, ‘‘[i]t is indeed necessary to improvise.’’ ¹⁰¹ We cannot but: ‘‘Humming in the background of all life is improvisation.’’ ¹⁰² Yet, at the same time, and again quoting Derrida:

It’s not easy to improvise, it’s the most difficult thing to do. Even when one improvises in front of a camera or microphone, one ventriloquizes or leaves another to speak in one’s place the schemas and languages that are already there. There are already a great number of prescriptions that are prescribed in our memory and in our culture. All the names are already preprogrammed. It’s already the names that inhibit our ability to ever really improvise. One can’t say what ever one wants, one is obliged more or less to reproduce the stereotypical discourse. And so I believe in improvisation and I fight for improvisation. But always with the belief that it’s impossible.

Thus, improvisation entails a constant negotiation between necessity and impossibility. The same struggle can be found in law where each performance of authority compels a simultaneous suspension of that authority. It is this suspension of authority, and how law responds to such, which is of crucial importance to lawyers and legal theorists. The ‘‘law as performance’’ thesis advocated by Balkin and Levinson helped deepen our conception of ‘‘law.’’ However, insofar as it seemingly left unquestioned the paradox of immediacy in performance, it failed to fully account for the self-authorization of law: ‘‘the law of the law: I exist.’’ ¹⁰³ In contrast, when viewed through the lens of musical improvisation, the aporetic nature of performance is presumed. The focus then becomes one of justice: what makes for the most just unpredictability? This is perhaps a lesson best left for Ornette Coleman.